Citation Nr: 9924361
Decision Date: 08/26/99 Archive Date: 08/27/99
DOCKET NO. 98-00 638A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
Entitlement to service connection for a skin disorder,
including as due to exposure to herbicide.
Entitlement to a rating greater than 30 percent for post-
traumatic stress disorder.
REPRESENTATION
Appellant represented by: AMVETS
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active service from November 1969 to November
1971.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Buffalo, New York, in
December 1996 which denied service connection for a history
of sebaceous cysts and seborrheic dermatitis, including as
due to exposure to herbicides and granted service connection
for post-traumatic stress disorder (PTSD), assigning a
30 percent evaluation.
FINDINGS OF FACT
1. The veteran served in Vietnam during the Vietnam
conflict.
2. The veteran does not have chloracne or other acneiform
disease consistent with chloracne.
3. His current skin disorder was first manifested many years
after his separation from service and is not shown to be due
to any injury or disease incurred in service or to any
service-connected disability.
4. PTSD is manifested by considerable impairment of social
and industrial adaptability, with periods of rage, isolation,
and difficulty in establishing and maintaining social and
work relationships.
CONCLUSIONS OF LAW
1. A skin disorder, to include as due to exposure to
herbicide, was not incurred in or aggravated by service and
cannot be presumed to have been incurred therein; neither is
it proximately due to a service-connected disability.
38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1998).
2. PTSD is 50 percent disabling and no more. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2,
4.10, 4.130 and Part 4, Code 9411 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual background
The veteran's service medical records show that, at the time
of his enlistment examination in September 1969, he reported
a history of a skin rash on his chest; no pertinent abnormal
clinical findings were noted on that examination. During a
hospitalization for treatment of an unrelated ailment in late
1970, examination of the veteran's skin was reported as
negative. No other pertinent service medical records are
available.
In November 1971, the veteran applied for service connection
for several other disabilities, including cellulitis of the
left ankle.
A VA compensation examination was conducted in January 1972.
The examiner reported that the veteran's skin was clear
(without specifying the area) and that there were no
residuals of cellulitis of the left ankle. The RO denied
service connection for that disability May 1972 as not being
shown by the evidence of record.
In July 1996, the veteran submitted a claim for service
connection for PTSD and for lumps and a rash on his back,
chest area, crotch, and head due to exposure to Agent Orange
in 1978 [sic].
The veteran was hospitalized at a VA facility in August and
September 1996 for psychiatric treatment. On examination by
a psychiatrist, the veteran reported having had an intense
startle reaction since his return from Vietnam. He indicated
that he had a history of grabbing people-people who awakened
from sleep, e.g., his mother, and who misused authority,
e.g., his supervisors at work. He also stated that he was
quick to get enraged and had recently hit his daughters with
his fists. The veteran denied owning any guns, but did sleep
with other weapons. He reported that he had used various
drugs in Vietnam, but not during the past 20 years, and had
never had an alcohol problem. On examination, he was
cooperative, with no obvious motor restlessness. The
veteran's speech was noted to be spontaneous and he indicated
that his mood was generally "fair good, except when I am
enraged." He denied any suicidal or homicidal thoughts and
was well oriented. The veteran's concentration and capacity
for abstract thought was adequate, as was his remote, recent,
and immediate memory. His insight and judgment were both
reported to be good. The examiner suggested three different
treatment goals. He indicated that, although the veteran had
shown improved insight and motivation regarding his PTSD, he
continued to show the full range of PTSD symptomatology. A
GAF score of 55 was noted on admission and a score of 60 was
reported at the time of discharge.
A VA skin examination was conducted in October 1996. The
examiner noted that the veteran reported a history of a rash
on his anterior and posterior thorax since sometime in the
1980s, as well as some sort of surgery in the 1980s in which
lumps had been removed, following which he developed a rash
that had persisted. At the time of the examination, the
veteran described having a constant itch, which was remitting
and exacerbating, in summer. He denied having any burning,
pain, anesthesia, or paresthesia. He indicated that he had
seen a dermatologist in the past. On examination, the skin
of the anterior thorax was reportedly normal. On the
posterior thorax there was evidence of surgical excision of
what may have been sebaceous cysts. The examiner indicated
that there were hyperemic areas of his skin that were
hyperpigmented and well healed, covering most of his entire
posterior thorax. There were also a few erythematous lesions
on the posterior thorax, but there was no dermatomal deficit
or nervous manifestation associated with this lesion. The
examiner stated that the manifestations most likely
represented seborrheic dermatitis.
In November 1996, a VA psychiatric examination was also
conducted. The veteran reported that he had worked at the
same job since 1972. He indicated that his supervisors were
very understanding and his peers stayed out of his way, but
that he continued to have problems with both his co-workers
and supervisors because of his temper and unpredictable
behavior. He claimed that when he got in his "combat-ready
mode," it was difficult to say what he might do. The
veteran described difficulty getting close to people or ever
trusting them. He stated that he had dug a fox hole in his
backyard and spent most of his time either in there or
patrolling the area. On examination, the veteran was noted
to be oriented, relevant, and coherent. He denied any
delusions or hallucinations, but admitted having flashbacks
and nightmares, claiming that sometimes the flashbacks were
so real that he had to keep telling himself that he wasn't in
Vietnam. He indicated that he continued to have feelings of
depression and survivor guilt, as well as a startle reaction.
The veteran reported having feelings of hopelessness and
helplessness. He stated that after his social worker
interview he had been more troubled because the interview
revealed a lot of memories he had wanted to forget. The
examiner noted that his insight and judgment were "fair,
adequate." A GAF score was not reported.
As part of that examination, a social survey was also
obtained. The social worker indicated that the veteran was
very guarded during the interview and had difficulty
recalling specific details of his Vietnam experiences.
Nevertheless, he displayed non-verbal expressions of anguish
whenever he spoke about Vietnam. The social worker reported
that the veteran's lifestyle was fairly isolated. He felt
uncomfortable with his co-workers. It was noted that he
avoided people and anything that might cause him to recollect
his memories. He described daily intrusive memories of
Vietnam and nightmares 3-5 times per week. Irritability and
aggressiveness were reported by the veteran and validated by
his wife. The social worker indicated that the veteran
symptoms demonstrated definite reduction in initiative,
flexibility, efficiency and reliability levels. She
commented that, although the veteran was employed, he used
his employment situation as a way to distract himself from
his thoughts. She noted that he had difficulty coping with
social situations and also with his co-workers. At that
time, he had been receiving individual therapy and medication
at the Vet Center. He had been cooperative in treatment and
had expressed motivation to continue the treatment.
In December 1996, the veteran's sister wrote describing his
PTSD symptoms. In particular, she noted his quick temper and
fear and confusion on waking up. She indicated that he had
withdrawn from his family and friends, although in the
previous 2 years he had begun to open up and talk about some
of the things that he experienced in service.
The veteran wrote in September 1997 that he had been
experiencing dermatology problems ever since he was exposed
to Agent Orange in Vietnam. He described severe itching skin
rashes that could not be controlled with over-the-counter
medications and lotions. He also reported having had unusual
growths or lumps on certain parts of his body, in particular
his private areas. The veteran indicated that his skin was
constantly shedding and that it was so severe that he was not
allowed to go swimming in public pools.
VA outpatient clinic records dated from February to November
1997 reflect the veteran's evaluation for a chronic pruritic
rash on his back and chest, as well as itching and burning in
his groin and between his toes. The examiners' diagnoses
were of eczema, eczematous/follicular dermatitis, confluent
and reticulated papillomatosis, xerosis, tinea cruris, and
tinea pedis. One examiner attributed the rash to the
veteran's PTSD. Other examiners noted the veteran's possible
exposure to Agent Orange, but none indicated that the skin
disorder was caused by such exposure or otherwise related it
to service.
Received in December 1997 was a letter from a Vet Center
counselor and the report of the veteran's intake evaluation
in October 1996. Those documents reflect the veteran's
initial evaluation, as well as his attendance at weekly
individual counseling sessions. It was noted that the
veteran continued to have problems with severe sleep
disturbances and problems with feelings of anger and rage
which were readily triggered by situational problems or
current events related to Vietnam. He reportedly had daily
intrusive thoughts of combat and nightmares several times per
week. He attempted to avoid thoughts, feelings, or
conversation associated with his Vietnam experiences, as well
as activities, places, or people that aroused recollections
of the trauma. The counselor stated that, at times, the
veteran was unable to recall important aspects of the trauma
and that he isolated himself. He had difficulty
concentrating and was hypervigilant. The counselor
characterized the effects of the veteran's PTSD as severe.
In January 1998, the veteran's wife and sister wrote
describing their observations of the veteran.
Also in January 1998, the veteran and his wife testified at a
personal hearing before a hearing officer at the RO. They
both noted the veteran's lack of trust of people and
described his easily invoked rage. The veteran reported that
he had worked at the same job for 25 years, but that his
employer had moved him from a position where he worked with
other people to one where he worked by himself. He stated
that he had been terminated 3 times because of his physical
abuse of his supervisors. He estimated that he lost about 3
months from work every year because of his PTSD. The
veteran's wife again described his having frequent nightmares
and the care with which she had to wake him, out of fear of
provoking a violent reaction. Regarding his skin disorder,
the veteran testified that he didn't receive any treatment
for skin problems in service. It was in the late 1970s when
his family physician first noted and removed 2 lumps from his
back. He indicated that thereafter he started having rashes
all over his back, arms, and chest. The veteran stated that
a dermatologist told him that the rashes may be due to Agent
Orange. He also testified that his children had the same
rashes.
A VA psychiatric compensation examination was conducted in
April 1998. The veteran reported that he still had
nightmares about his Vietnam experiences and that "at times
he wakes up and jumps people because of the nightmares." He
indicated that he had almost killed his mother and his sister
after he woke up from a nightmare. He again described
difficulty getting close to people or socializing with them.
The veteran again noted that he had dug a foxhole in his
backyard and spent a lot of time there when he wasn't
working. The examiner indicated that the veteran could not
sit still during the interview because of his dermatitis,
which he claimed had gotten worse. On examination, he was
completely oriented. He denied having any delusions or
hallucinations, but admitted having flashbacks and
nightmares. The veteran again reported feeling depressed and
having survivor guilt. He described a "tremendous" startle
reaction, as well as fleeting suicidal ideas. He indicated
that he felt claustrophobic and paranoid in a closed room.
The veteran again reported feeling "quite hopeless and
helpless and for that reason he does not interact with other
people." He claimed that the more he talked about Vietnam,
the more he got upset. The examiner stated that his memory
for recent and remote events was good and that he had a fair
amount of insight and judgment regarding his daily
activities. He commented that the veteran had "manic-like
reactions" after he had flashbacks. The examiner listed a
GAF score of 55 based on the veteran's PTSD.
Analysis
Service connection
At the outset, the Board finds that the veteran has met his
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that his claim is well
grounded; that is, the claim is not implausible. See
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
Additionally, there is no indication that there are
additional, pertinent records which have not been obtained.
Accordingly, there is no further duty to assist the veteran
in developing the claim, as mandated by 38 U.S.C.A.
§ 5107(a).
Service connection connotes many factors, but basically it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces or, if
pre-existing such service, was aggravated therein.
38 U.S.C.A. § 1110. Such a determination requires a finding
of a current disability which is related to an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).
Service connection may be accomplished by affirmatively
showing inception or aggravation during service or through
the application of statutory presumptions. 38 U.S.C.A.
§§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Each
disabling condition shown by a veteran's service records, or
for which he seeks service connection, must be considered on
the basis of the places, types and circumstances of his
service as shown by service records, the official history of
each organization in which he served, his medical records and
all pertinent medical and lay evidence. 38 U.S.C.A. § 1154
(West 1991). Congenital or developmental defects, refractive
error of the eye, personality disorders and mental
deficiency, as such, are not diseases or injuries within the
meaning of applicable legislation. 38 C.F.R. § 3.303(c).
Satisfactory lay or other evidence that injury or disease was
incurred or aggravated in combat will be accepted as
sufficient proof of service connection if the evidence is
consistent with the circumstances, conditions or hardships of
such service, even though there is no official record of such
incurrence or aggravation during active service. 38 C.F.R.
§ 3.304 (1998).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
Additionally, regulations provide that service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service-
connected. 38 C.F.R. § 3.310.
The law states that a veteran who served in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975, and who develops one of several
enumerated diseases shall be presumed to have been exposed to
an herbicide agent unless there is affirmative evidence that
the veteran was not so exposed. 38 U.S.C.A. § 1116;
38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The specific
diseases are chloracne or other acneform disease consistent
with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma,
porphyria cutanea tarda, soft tissue sarcoma, multiple
myeloma, respiratory cancers, acute and subacute peripheral
neuropathy and prostate cancer.
The law and regulations further provide that the disease
shall have become manifest to a degree of 10 percent or more
at any time after service, except that chloracne or other
acneiform disease consistent with chloracne, porphyria
cutanea tarda and acute and subacute peripheral neuropathy
shall have become manifest to a degree of 10 percent or more
within a year, and respiratory cancer within 30 years, after
the last date on which the veteran was exposed to an
herbicide agent during active military, naval or air service.
38 C.F.R. § 3.307(a)(6). For purposes of this section, the
term acute and subacute peripheral neuropathy means a
transient peripheral neuropathy that appears within a week or
months of exposure to an herbicide agent and resolved within
two years of the date of onset.
Initially, the Board notes that no examiner has diagnosed
chloracne or other acneform disease consistent with
chloracne. Although the veteran served in Vietnam during the
Vietnam conflict, he does not have one of the diseases listed
at 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the veteran's
exposure to an herbicide agent cannot be presumed and the
presumption of service connection afforded by §§ 3.307, 3.309
is not applicable. No other presumption applies, as well.
Nevertheless, service connection might still be established
if the evidence were to show that the veteran now has a skin
disorder that resulted from a disease or injury incurred in
service or that is due to a service-connected disability.
There is no evidence of any skin disorder during service or
for many years after service. Although the veteran cannot be
presumed to have been exposed to an herbicide agent during
his Vietnam service, he has also not pointed to any specific,
verifiable exposure that he might have had to such an agent
while he was in Vietnam. Regardless, there is no evidence
that any examiner has definitely linked his current skin
disorder to such exposure anyway, despite the veteran's
testimony to that effect. Therefore, the evidence does not
show that the veteran's current skin disorder is due to any
disease or injury incurred in service and the criteria for
establishing service connection on the basis of direct
service incurrence are not met.
Although one examiner has indicated that the veteran's skin
disorder is secondary to his PTSD, no other examiner has done
so and at least one examiner has stated that the etiology is
unknown. The Board finds that the numerous diagnoses that do
not attribute the skin disorder to his PTSD far outweigh the
one diagnosis that does so. Accordingly, the Board concludes
that the criteria for establishing service connection on a
secondary basis are also not met.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). In this case, the Board finds that the preponderance
of the evidence is against the veteran's claim.
Therefore, service connection for a skin disorder, including
as due to exposure to herbicide, must be denied.
Greater rating for PTSD
In general, an allegation of greater disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The
Board finds that the veteran's claim concerning this issue is
well grounded. In addition, there is no indication that
there are additional, unsecured records that would be helpful
in this case. Therefore, the Board has no further duty to
assist the veteran in developing his claim. 38 U.S.C.A.
§ 5107(b).
In Fenderson v. West, 12 Vet. App. 119 (1999), the United
States Court of Appeals for Veterans Claims (Court) noted the
distinction between a claim for an increased rating for a
service-connected disability and an appeal from the initial
rating assigned for a disability upon service connection.
Inasmuch as the 30 percent rating for the veteran's PTSD was
the initial rating assigned for the disability and was made
effective from the date of receipt of the veteran's claim for
service connection, the Board will evaluate the level of
impairment due to the disability throughout the entire
period, considering the possibility of staged ratings, as
provided by the Court in Fenderson.
In rating psychoneurotic disorders, the following general
rating formula shall be applied: For neurotic symptoms which
may somewhat adversely affect relationships with others, but
which do not cause impairment of working ability, a
noncompensable rating is assigned. A 10 percent evaluation
is warranted with emotional tension or other evidence of
anxiety productive of mild social and industrial impairment.
Definite impairment in the ability to establish and maintain
effective and wholesome relationships with people, with
psychoneurotic symptoms resulting in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite industrial impairment warrants a
30 percent rating. A 50 percent evaluation requires that the
ability to establish and maintain effective or favorable
relationships with people be considerably impaired, and that,
by reason of psychoneurotic symptoms, the reliability,
flexibility and efficiency levels be so reduced as to result
in considerable industrial impairment. When the ability to
establish and maintain effective or favorable relationships
with people is severely impaired, and psychoneurotic symptoms
are of such severity that there is severe impairment in the
ability to obtain or retain employment, a 70 rating is
assigned. A 100 percent rating is warranted when the
attitudes of all contacts except the most intimate are so
adversely affected as to result in virtual isolation in the
community, when there are totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities, such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior, or when
the veteran is demonstrably unable to obtain or retain
employment. Code 9411 as in effect prior to November 7,
1996.
In November 1996, the regulations concerning mental disorders
were revised.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
38 C.F.R. § 4.126 (1998).
The following general rating criteria were adopted: For
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name, a
100 percent rating is appropriate. When there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships, a 70 percent evaluation in
warranted. Occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships, warrants
a 50 percent rating. With occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events), a
30 percent evaluation is indicated. For occupational and
social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational
tasks only during periods of significant stress, or; symptoms
controlled by continuous medication, a 10 percent rating is
appropriate. If a mental condition has been formally
diagnosed, but symptoms are not severe enough either to
interfere with occupational and social functioning or to
require continuous medication a 0 percent evaluation is to be
assigned. 38 C.F.R. § 4.130 (1998).
The medical evidence, as well as the lay statements and
hearing testimony adduced in this case, shows that the
manifestations of the veteran's service-connected PTSD have
remained fairly stable for the last several years. He has
been employed by the same company for well over 20 years,
although he has reportedly been terminated on a few occasions
due to physical conflicts with his supervisors and has lost
some time from work due to his PTSD. In addition, he has had
difficulty dealing with his co-workers. The veteran has few
friends, trusts no one, including his wife, and doesn't
socialize. He has flashbacks and nightmares and is easily
enraged. Recent psychiatric examiners have assigned GAF
scores of 55.
The Board notes that the American Psychiatric Association:
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Fourth edition,
1994) (DSM-IV) states that a GAF score from 51-60 is
indicative of moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).
DSM-IV also indicates that a GAF score of 41-50 reflects
serious impairment, e.g., unable to keep a job.
The United States Court of Appeals for Veterans Claims
(Court) has held that when the law or a regulation changes
during the pendency of a claimant's appeal, the claimant is
entitled to consideration of his claim under the previous
provision as well as the revised provision, with application
of the standard that is more favorable to him. Karnas v.
Derwinski, 1 Vet. App. 308 (1991). The veteran's claim for
service connection for his PTSD was received in July 1996 and
his current appeal arose from the initial rating assigned for
that disability. See Fenderson v. West, 12 Vet. App. 119
(1999). Therefore, his PTSD must be evaluated under the
criteria that were in effect both prior to and subsequent to
November 1996.
Applying the criteria that were in effect prior to November
1996, the Board finds that the veteran's PTSD is productive
of a considerable degree of impairment. This finding is
supported by the GAF score assigned by recent examiners that
indicates moderate impairment. The veteran has continued to
work, although he has had conflicts with his co-workers and
supervisors. While he has indicated that he has few, if any,
friends, and trusts no one, the evidence does not show severe
impairment in his ability to obtain or retain employment. He
has worked for the same company for well over 20 years. The
Board finds that, applying these criteria, a 50 percent
rating, and no more, is warranted for the veteran's PTSD.
Considering the rating criteria that became effective in
November 1996, the Board notes that the medical evidence does
not show a flattened affect or circumstantial,
circumlocutory, or stereotyped speech; the veteran does not
appear to have difficulty understanding complex commands or
any memory impairment or impaired thinking. His judgment has
been noted to be fairly good, but he has been found to be
depressed. Further, he does have occasional attacks of rage
(rather than panic attacks), as well as difficulty
establishing and maintaining effective social and work
relationships.
The regulations provide that where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (1998).
The Board finds that, applying the revised rating criteria,
the evidence shows an approximate balance between the
criteria for a 30 percent rating and a 50 percent rating for
PTSD. Accordingly, on that basis, a 50 percent rating is
warranted. 38 U.S.C.A. § 5107(b).
Therefore, because the rating criteria that were in effect
prior to November 1996 appear to be more favorable to the
veteran, those criteria should be used in rating his PTSD.
Inasmuch as the evidence indicates that a 50 percent rating,
and no more, is warranted using those criteria, the Board
concludes that an increased rating to 50 percent disabling
should be assigned for the service-connected PTSD. However,
the evidence does not reflect a degree of impairment due to
the PTSD that would warrant a higher rating under any
applicable criteria.
It should be noted that, in exceptional cases where
evaluations provided by the rating schedule are found to be
inadequate, an extraschedular evaluation may be assigned
which is commensurate with the veteran's average earning
capacity impairment due to the service-connected disorder.
38 C.F.R. § 3.321(b). In this regard, the Board notes the
veteran's contentions concerning the effect his PTSD has had
on his ability to get along with his co-workers and
supervisors at work. However, the Board believes that the
regular schedular standards applied in the current case
adequately describe and provide for the veteran's disability
level. There is no evidence that the veteran has recently
been hospitalized for treatment of his PTSD. Neither does
the record reflect marked interference with employment, as
opposed to that degree of impairment contemplated by the
rating schedule. There simply is no evidence of any unusual
or exceptional circumstances that would take the veteran's
case outside the norm so as to warrant an extraschedular
rating. The Board also notes that the RO considered
referring the claim to the Director of VA's Compensation and
Pension Service for consideration of assignment of an
extraschedular rating pursuant to § 3.321(b), but determined
that such referral was not warranted. Accordingly, the Board
also finds that such a rating is not appropriate. See Floyd
v. Brown, 9 Vet. App. 88 (1996).
Therefore, an increased rating for PTSD to 50 percent
disabling and no more is granted, primarily on the basis of
the rating criteria that were in effect prior to November
1996. Moreover, as noted above, the evidence shows that the
veteran's psychiatric symptoms have remained relatively
stable for the past several years. Accordingly, the Board
has considered the assignment of "staged" ratings pursuant
to Fenderson, but finds that a 50 percent rating is
appropriate for the entire period since service connection
was established by the RO.
ORDER
Service connection for a skin disorder, including as due to
exposure to herbicide, is denied.
A 50 percent rating, and no more, is granted for PTSD,
subject to the law and regulations governing the award of
monetary benefits.
C. W. Symanski
Member, Board of Veterans' Appeals